November 30, 2008

The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.

But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993. The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

"You're talking about 20 minutes that actually lets the jury see these people walking and breathing and moving," said Matt Murphy, an Orange County, Calif., prosecutor.... "I can see why these videos drive defense lawyers crazy because they actually balance things out"....

Evan Young, the lawyer who failed to persuade the Supreme Court to take up the Weir video challenge, said she thinks they tilt the scales against defendants. "Without limits on the use of this technology," she wrote in her brief, "capital trials become theatrical venues, and the determination whether a defendant receives a death sentence turns on the skill of a videographer."

But of course there is a limit:

Until the early 1990s, victims and family members rarely testified about the impact of a crime, having been held back by a series of Supreme Court rulings that said such testimony would violate the defendant's constitutional rights. A 1991 Supreme Court decision reversed the prohibition, a key milestone for advocates who say victims have historically felt marginalized by the criminal justice system.

Writing for a 6 to 3 majority, then-Chief Justice William H. Rehnquist said prosecutors could balance the virtually unlimited defense mitigation evidence by offering "a quick glimpse of the life" of the victim. But the court laid out little specific guidance beyond saying that victim impact evidence must not be "unduly prejudicial."

So the question is whether the Supreme Court should set more detailed rules. Was that video about Jesse Heller too much? If you say yes, do you think that the Supreme Court can come up with constitutional law specifying how many photographs or how many minutes of photographs are "unduly prejudicial"? Should it be said that the Constitution forbids pop songs?

The first thing I'd note is your title omits so much as to be a lie. He did far more than run a stop sign. Get the facts right and you'll be on the trail as to why he got 22 years.

As for the videos and whether or not they're fair, I'd suggest that if the prosecution successfully proffers such a video into evidence then the defense should be allowed in one of their own making, if they wish. Leave it to the defense to come up with something creative to help their cause, to "humanize" the defendant, and risk offending the jury or the court. Dueling videos.

An additional point is that the man who went to prison had a blood alcohol level above the legal limit. That makes what he did worse, because he decided to drive in that condition... not that you couldn't run a stop sign for virtually no reason at all. (I ran a green light for no reason at all... just a pure mental lapse.)

"Without limits on the use of this technology," she wrote in her brief, "capital trials become theatrical venues, and the determination whether a defendant receives a death sentence turns on the skill of a videographer."

So instead, Evan Young wants trials to remain theatrical venues based upon the charisma, eloquence and acting skills of the various attorneys.

He was drunk, he drove while drunk, and in the course of doing that he blew right through a stop sign, broadsided another vehicle, killing the occupant. That's what he did. We can then quibble about whether those bad acts deserve 22 years.

And I'd wager that as a law professor you'd not accept your own rendering of the facts of the case from a student called upon to do so.

Whenever has the law been less dispassionate, whenever less blind, than in modern America?

That is the appearance on statues of the Greek goddess Themis, but impartiality and unprejudiced wisdom are ideas long passed, if they were ever indeed practiced.

John Edwards made his living doing performances meant to sway juries in exactly this way, against doctors in malpractice cases. He even channeled an unborn baby, Jennifer Campbell, who was then born with cerebral palsy.

""She said at 3, 'I'm fine.' She said at 4, 'I'm having a little trouble, but I'm doing OK.' Five, she said, 'I'm having problems.' At 5:30, she said, 'I need out."

"She speaks to you through me and I have to tell you right now -- I didn't plan to talk about this -- right now I feel her. I feel her presence. She's inside me, and she's talking to you."

Rhhardin has mentioned this here before, but the soap opera mentality afflicting our culture has degraded all those activities which relied on abstract thought, and replaced them with pure emotion.

At least in totalitarian countries you know the verdict will be based on obvious political demands. But in the US, the best emoter wins.

"The video that helped put a man in prison for 22 years for running a stop sign."

That's the most dishonest thing I think I've ever seen you post. He didn't "run a stop" sign - he murdered somebody, and he belongs on death row. Drunk drivers are violent, dangerous criminals, not people who made an innocent mistake.

Ah, yes, the wonderful “law” of evidence. This is too relevant so a jury should not see it. Those simple minded jurors. I suppose we can wonder whether killing a nice person deserves more jail time than killing a rude person. Maybe we would be better off going back to the days when the jury was composed of those who witnessed the event. No, that’s too relelvant.

"How different am I from the man who went to prison for 22 years? 22 years!

An additional point is that the man who went to prison had a blood alcohol level above the legal limit."

Two things spring to mind. You didn't kill anyone. The second I'm guessing at. You weren't drunk. Drunk driving is premeditated. There are repercussions for all of our decisions and non-decisions. That's life in reality. Have a habit of blowing through red-lights? Don't friggin' drive.

The video would seem to balance things out in cases where the alleged victim cannot attend court. A wheel chair in the court room, for instance, is pretty powerful stuff too.

Aren't (shouldn't) these videos be limited to the penalty phase of the trial? Does that mean it is used only in jurisdictions where a jury determines sentence? Or are judges shown these videos if they alone pass sentence?

Shouldn't the defense likewise be able to do a video about how the decedent was a jerk? After all, in a non-premeditated case like this the point is not to show the defendant's cold heartedness, but the value of the decedent's life. I'm thinking of the Bubble Boy from Seinfeld.

Oh, and leave out the hunting photos; there may be PETA members on the jury.

I'm not sure how fair I think the 22 years is. He was criminally negligent, but it was an accident.

If we don't put people who are driving drunk when they accidentally kill someone behind bars for it, we won't deter that horrible behavior. On the other hand, 22 years is a long time for such a mistake. For this reason, I'm concerned about the effect of this video.

I think it should be noted that the man did not have a few drinks and then accidentally run a stop sign. When the police tried to pull him over, he blew through the stop sign trying to evade them and a fourth DUI.

And, he plead guilty. The video was used in the sentencing phase in lieu of family testimony. I think one would have a hard time arguing that a picture montage set to music has any more impact than bawling parents and siblings.

We can debate how fair 22 years is as a penalty and is it really 22 years, or will he get out in less than that?

There is also the issue that this is a repeat DUI offender and the public deserves to be protected from him. I would be satisfied with a much lesser punishment if there was some way of assuring that he will never ever drive a car again. Or never take another drink--his choice.

Maybe a life sentence with immediate parole--to be revoked if he ever drives or drinks again? It would have been nice had this been done after the 2nd or 3rd offence and maybe there wouldn't have been a 4th.

What if the man had been using a cell phone in a locale in which that is illegal, which restriction is becoming more widespread over time, as did DUI law? What if the man had been using a cell phone and had previously been caught and sanctioned, and he ran the stop sign while evading police?

In future, the conversation might go:

[Cell-phone chatting] is premeditated. There are repercussions for all of our decisions and non-decisions. That's life in reality.

[Cell phone-chatting] drivers are violent, dangerous criminals, not people who made an innocent mistake.

I suppose we can wonder whether killing a nice person deserves more jail time than killing a rude person.

Does anyone doubt that this is not already a factor in decisionmaking, or that members of the legal profession don't already make use of the victim's character in one way or another at various points in the process?

I think it should be noted that the man did not have a few drinks and then accidentally run a stop sign. When the police tried to pull him over, he blew through the stop sign trying to evade them and a fourth DUI.

What?! And I'm supposed to have sympathy for his getting 22 years?! Are you kidding me?

I think he's lucky he only got 22 years and not life without parole. Drunk, evading police, a repeat offender. amd he kills someone. Geeze! What on Earth does it take for people stop crying for the poor, poor convicted felon? Save some of those tears for the regular, law-abiding people who'd prefer not to be killed by these jackasses.

As for the case the Supreme Court didn't hear, the offender raped and murdered someone. Pardon me for not possibly caring less about his getting a severe penalty for that.

Repeat DUI offenders get no sympathy from me. My niece was killed at 16 when her boyfriend took her on a drive on a Sunday afternoon. He was drunk, it turns out, even though it was only mid-day, and crossed the median, hitting a truck head-on. . He tried to hide the crime by claiming his dead girlfriend was driving.

So 22 years is fine with me.

But Althouse seemed to be addressing a different issue, about whether the use of propaganda, by either plaintiff or defendant, was good for US courts.

My answer is "no", but that lawyers have already been doing this for ages. This is no different; it merely gives the victim's families some emotive weight in this new set of scales, not that of reason, but of melodrama.

Melodrama has its role, but in cases like this, a judge and jury should be able to arrive at 22 years for this particular asshole without any heartstrings plucked at all.

The man knew he was engaging in an activity that could cause trouble and tragedy. He does not deserve our pity. But ought the tipping point be that he was drunk, per se, or that he was engaging in an activity--any activity non-essential or counterproductive to driving--which increased the risk or even likelihood of his being involved in an accident? The fact that he was drunk makes the crime seem more heinous, but the boy would be no more or less dead had the stop-signing running occurred due to the driver eating while driving, applying makeup while driving, glancing at a GPS or open laptop while driving, talking on a cell phone while driving, or trying to evade police after getting tripping a speed trap or being spotted driving without a seatbelt. The driver would be no more or less culpable if the victim were a good boy, a bad boy, a rich boy, a poor boy, or if he were blessed with parents who could put together a 20-minute video montage or not. What are the most essential points on which justice ought turn? What points muddy the waters?

Pogo - I think whether or not the sentence is deserved is relevant to determining whether the playing of an emotional video leads to unfair decisions or not.

Catharine - Whether or not the boy would be more or less dead is irrelevant. Whether or not the man's actions were more or less irresponsible and more or less likely to lead to someone else's death is relevant.

And, adding to that, intentionally blowing through a stop sign - other drivers be damned - to prevent the consequences of your intentionally criminal behavior that you had previously been caught and punished for on three separate occasions most definitely does add to your culpability.

Jennifer said... "I think it should be noted that the man did not have a few drinks and then accidentally run a stop sign. When the police tried to pull him over, he blew through the stop sign trying to evade them and a fourth DUI."

Now, that makes a difference. And I can't find it in the article, but looking elsewhere, I can see this is true. This adds a level of intentionality that makes him much more culpable.

And I can't find it in the article, but looking elsewhere, I can see this is true.

How dishonest of the writer to exclude such information. And if both Jennifer and Ann can locate that information so readily, Mr. Markon cannot claim he wasn't aware of the details; to do so would be to admit gross incompetence.

The man got 22 years for killing a person while driving drunk. The stop sign is irrelevant.

Are you trying to make us think that any person who might run a stop sign (and how many of us never have gone through a light or not noticed a sign or did something dangerous like that accidentally) could end up in prison for 22 years? What if someone has a heart attack or stroke or epilepsy they didn't know about?

Driving drunk is a choice, an active choice, and I've got no sympathy for someone who choses to get behind the wheel of a car while drunk and who then runs into another car and kills someone. The word "accident" hardly applies.

It's illegal to talk on the cell phone in town (in this case "town" is Albuquerque) and I wouldn't want to. When there is traffic a person's mind needs to be on traffic. I long ago taught the kids to be quiet when there is traffic and they know they won't get the radio on until we get on the freeway out of town. And I *do* use my cell phone outside of town if there are few other cars. Even then, though, I don't dial it.

I'm just wondering how many ways there are of taking a young man's life, while doing something illegal, which are not worth 22 years in prison.

I probably wouldn't be wondering but the title to the post was such a gross distortion of what I perceive to be the facts (apparently I am not alone), and so I am now second-guessing myself and wondering if there was something Ann meant to say but conveyed so poorly by leading with the title she chose.

Recently, Ann wonders why pirates are running rampant in the Indian Ocean. Now she gasps as a drunk driver who killed someone while evading police gets "22 years for running a stop sign."

I think that's your answer--the bleeding heart liberal repulsion of proportional punishment; no matter what horrible thing someone has done, they are a child inside and must be given mercy or some bullshit like that. (I'm all for giving mercy for the first offense, but certainly not the fourth.)

Catharine - Whether or not the boy would be more or less dead is irrelevant. Whether or not the man's actions were more or less irresponsible and more or less likely to lead to someone else's death is relevant.

The purpose of this comment is to acknowledge the missing of that one, which is a pity, because that one pretty much says it all without much, if any, more required.

f we are talking about justice, what difference does it make who was the victim and what impact this would have on his family. We should not be judging the crime based on emotional outbursts--that's how wrongful convictions happen (not the case here, just wrong sentence). At issue is what the crime is--the actions of the perpetrator and the immediate circumstances surrounding the events. The rest is complete BS.

Have you noticed how every drive-by victim is always "a good boy" (at least for male teens), irrespectively of his membership in a gang, criminal record or much else that may well point to him being anything but a "good boy".

Of course, most of the perp's families sing the same tune. Everything is always unexpected and unbelievable.

It's garbage. Judge the crime based on what actually happened and sentence on the actions. Family impact should go to a civil jury, not a criminal one.